The Internet and Challenges of Intellectual Property - Essay Example

The Internet and Challenges of Intellectual Property The Internet and Challenges of Intellectual Property Intellectual property (IP) refers to the legal concept under which exclusive rights for the mind’s creations are recognized. IP law grants owners of intangible assets rights to their property which includes discoveries and inventions, literary and artistic works and music (George 2007). The significance of IP rights are in the fact that they protect the owners’ right to earn from the property they create through their intellect, while motivating others to come up with their own (Betting 1996). Giving commercial developers of software sufficient market incentives where they can invest their resources and time required for the production and dissemination of innovative products is an important justification for intellectual property. This paper will discuss the challenges posed by the internet in protecting computer software as an IP, as well as the challenge posed to the idea of IP itself. It will also discuss whether the challenges are being successfully met or not. IP may be perceived as information which is capable of being incorporated in tangible objects as well, but in the ideal circumstances, it is applicable to unlimited copies stored in different locations around the world. However, the property is not essentially in the copies, rather in the information the copies reflect. In this sense, IP may be understood as existing in two key branches; copyright and industrial property (George 2007). Copyright is in relation to the act that may be performed exclusively by the author only, or another party through the author’s authorization, mostly in literary and artistic creations including software, music, cinematographic work, paintings and poems. For example, only the author may grant permission to a publisher via licensing to produce copies of his original work. On the other hand, industrial property, often misunderstood to mean immovable or movable property such as factories and production equipment, relates to industrial designs and inventions (Betting 1996). In this context, inventions refer to new solutions created for technical problems, while industrial designs are visual creations that determine an industrial product’s aesthetic design. Industrial property additionally includes designations, commercial names, service marks and trademarks, and protection measures against being used for unfair competition. Although existent in such cases, the physical feature of intellectual creations is not as prominent as the fact that the object of industrial property contains intangible signs that transmit information to users (Spinello 2007). Such information is in regards to the protection aimed against unauthorized use of the signs contained in the services and products available in the market, which may mislead consumers as to the creator and origin of the services and products. Computer software is the interface between the users and the computers. Given the extensive, time consuming and costly research that goes into software development to come up with new programs, the developers’ need for IP protection of their software is apparent. Digital media and the internet pose a challenge to the responsibilities of consumers and rights of the producers of computer software, which can be reproduced and reused infinitely without degradations that limit their value or compromise the quality (Hahn 2005). This is further worsened by the fact that a copy of digital media is still an original. An aspect of the internet that negatively impacts IP rights is its ability to reach a wide population of consumers and distribute digital content in less costly and much faster ways than has ever been the case. Though speed and lower costs are fundamental advantages of the internet, they are harmful to content owners wishing to retain exclusive rights, who lose control over the ensuing broadcasting and consumption of their work. Another aspect of the internet that compromises IP protection is the belief by users that all content on the internet is in the public domain, despite the fact that they are notified of license agreements (Greenhalgh & Rogers 2010). While many users dismiss the license agreements as being either unfair or too restrictive, others are genuinely confused by their overly extensive nature and proceed to download copies illegally from the internet, which they find easier and convenient. Commercial piracy of computer software over the internet results in loss of revenue to firms and creators of the software via loss of royalties, sales and investment opportunities (Lai 2001). International piracy of IP is rife in third world countries, and for the creators and developers of computer software who are mostly in the developed countries, having it under control is difficult. It often means, on top of copyright measures, they have to transfer technology and assistance to the third world countries. Given their industrialized statuses, the developed countries have in place effective IP protections, while the developing countries have inadequate IP protection laws or they do not effectively enforce them. Furthermore, the vague position copyright has in relation to computer software compounds the matter in developing countries. In the United States, several years were spent in deciding whether to protect, and how much to protect, software in the spheres of copyright. Japan and Europe developed IP protection systems for software much later after the United States. However, in the developing countries, given their much younger stages of software development, both legal and technical solutions to IP protection are bound to be much slower (Perelman 2004). Therefore, whatever they can gain access to via the internet from the developed world, they will illegally use and distribute. Computer software cannot be said to be completely protected by IP elements, but significant and considerable measures have been taken by various institutions to combat the infringement of the owners’ rights. The Berne Convention of 1971, which became the most important international convention on copyright, protects most of the creative content on the internet that drives e-commerce, including computer programs (Greenhalgh & Rogers 2010). Related rights adopted by the convention also protect the contributions and interests of others that add value to the presentation of the software such as manufacturers’ of CDs and broadcasting agents. However, digital technology makes it possible to access, use, copy and transmit the protected software via interactive networks in digital form (Spinello 2007). This is done with much ease nowadays, unlike during the advent of the internet when narrow bandwidths presented technical constraints. With the characteristics and capabilities of the internet, e-commerce has impacted tremendously on the copyright system and related rights, and in turn, the copyright and related rights has impacted the way e-commerce is evolving. To make sure that the essential doctrines of copyright and related rights are not undermined by the internet and digital technology, appropriate and applicable legal rules must be formed (Greenhalgh & Rogers 2010). With the internet described as the largest copy machine in the world by a copyright organization, it has the challenged the efforts of IP protection by disrupting the traditional markets for copies of software and programs. The developments and emergence of certain services such as the internet based swapping of files without seeking authorization from the holders of the rights further infringes on their rights. With the CD burners being widely commercialized, the software programs can even be sold illegally to users who do not have access to the internet. Attempts to overcome the challenges posed by the internet do not necessarily mean abandoning the existing ideas and forms of IP. Numerous countries have copyright laws in which are contained liability concepts for those who contribute to the activities infringing IP protected rights of others. Liability is generally determined by the degree of participation of the party contributing to the acts of infringement, as well as their knowledge of the fact that they were infringing a copyright. Transforming the existing ones to curb the new challenges that crop up with technological advances is a more practical way to protect the right holders (Miller & Michael 2000). According to a study conducted by the International Intellectual Property Alliance (IIPA), the challenges are facing the copyright industry in an era when its (copyright industry’s) share is at exceptional levels in national economies, especially in the United States which is attributed to the strong American copyright laws and their effective mechanisms of enforcement (Hahn 2005). Independent researches in Brazil and Uruguay established that there was an increase in activities around copyright protected material for the period 1998-2008, their share in national economy grew by six percent and accounted for over 1.3 million job opportunities in Brazil alone. Such statistics add weight to the search by the copyright industries for legislative and technical solutions for the protection of copyright material from digital piracy. This necessitates transforming and adjusting the legal system to enhance the way it responds new developments in technology. Technological developments should not be seen as the threat to IP protection. Rather, the copyright industry needs to be dynamic and come up with quick effective ways of keeping up with the advances (Greenhalgh & Rogers 2010). That is one way they can be guaranteed of continued furtherance of the essential guiding principles on copyright and related rights. The transformations and adjustments should strive to make sure that the IP rights of the owners remain unchanged in spite of the technology levels of the day: creators should be given incentives to produce and distribute new software; it should recognize the significance of their contributions by affording them reasonable control over their IP’s exploitation and allow them to earn profits; allow appropriate balance in the interest if the public, especially in research, access of education; benefit the society ultimately through promoting cultural development, economy and science (Merges, Menell & Lemley 2007). The World Intellectual Property Organization (WIPO) examined vital issues in the realms of computer software copyright fields for several years. In conjunction with private and public processes and international organizations at both regional and national level, WIPO adopted two treaties in 1996 through consensus by over 100 countries. They were the WIPO Performance and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty (WCT). The two are commonly known as the Internet Treaties. Designed to supplement and update the international treaties existing on copyright and related rights, which were the Rome Convention and the Berne Convention, the WIPO Internet Treaties responded to the potential challenges presented by the internet and digital media technology. The WIPO Internet Treaties, in particular, addressed the dissemination of IP protected content over the internet (Greenhalgh & Rogers 2010). They exclusively included the protection of original databases and computer software and programs under copyright law as literary works. This aspect helped the copyright industry to understand the consequences of the absence or presence of computer software IP protection (Kinsella 2001). They first needed to examine the computers’ structure and the relationship between its components, including its software and hardware. They could then analyse the process of software development, including the trends that existed and the developments likely in future, for example, multi platform applications. These are factors that form critical foundations for building and solidifying computer software IP protection, rather than abandon what previously existed (Boldrin & David 2008). The WIPO Treaty opines that the protection of IP rights is vital for the sustenance of economic growth. It grants statutory expression to the economic and moral rights of the producers in their creations as well as the right of public access to the creations. An analysis of the copyright laws in the United States, for example, demonstrates the necessity for improvement in spite of the significant progress they have achieved towards protecting the interests of software producers (Merges, Menell & Lemley 2007). Improvement recommendations have been proposed that include passage of statutes that address the issue of distinguishing between the expression in the software and the idea, as well as the limiting IP protection to the tenets of organization, sequence and structure, which have no relation to the improvement of computer efficiency. An area that the improvement efforts need to consider is the cultural differences between the countries trying to protect their IP and the ultimate users (Burk & Mark 2009). For instance, Japan’s IP protection system is not very different to that of the United States. However, some cultural and social differences between Japan and the United States means that challenges may arise in the IP protection of computer software from a Japanese producer, who is governed by substantially different traditional laws than those of the United States. In this sense, considerations for improvement by the Japanese software producers should also take into account the adoption of the computer industry of open systems and the automated tools of software development. This will be in addition to the software protection approach undertaken, pursuant to the Japanese Copyright Law being revised (Beckman & Pletcher 2009). In conclusion, computer software is rightfully the intellectual property of the creator, and their interests and those of the entire industry must be protected (Chapman 2002). The copyright laws of intellectual property have bridged the gap in preventing infringement of such rights and the unauthorized dissemination and illegal earning from other people’s efforts. Such cannot be termed as a final effort, since the ever evolving nature of the internet calls for a continuous process in ensuring that copyright laws are always in favor of intellectual property and their fair use (Kinsella 2001). This paper acknowledges that the challenges have not been fully combated, but at the same time appreciates the notable efforts that have helped put the challenges in check. Computer software is developed in the interest of development of the world into a global village, and aspect is solely supported by the internet. It is the responsibility of the users of the internet to embrace IP laws and not use the media that is driving development to cannibalise the intellect of the developers (Wharton 1992). References Beckman,K & Pletcher, C 2009, ‘Expanding global trademark regulation’, Wake Forest Intellectual Property Law Journal vol. 10, no. 2, pp. 215-239. Betting, R 1996, Copyrighting culture: the political economy of intellectual property, Westview Press, Colorado. Boldrin, M & David, K 2008, Free access against intellectual monopoly, Cambridge University Press, Cambridge. Burk, D & Mark, A 2009, The patent crisis and how the courts can solve it, University of Chicago Press, Chicago. Chapman, A 2002, ‘The human rights implications of intellectual property protection’, Journal of International Economic Law vol. 5, no. 4, pp. 861–882. George, R 2007, The oxford handbook of business ethics, Oxford University Press, London. Greenhalgh, C & Rogers, M 2010, Innovation, intellectual property, and economic growth, Princeton University Press, New Jersey. Hahn, R 2005, Intellectual property rights in frontier industries: software and biotechnology, AEI Press, New York. Kinsella, S 2001, ‘Against intellectual property’, Journal of Libertarian Studies, vol. 15, no. 2, pp. 1-53. Lai, E 2001, The economics of intellectual property protection in the global economy, Princeton University Press, New Jersey. Merges, R, Menell, P & Lemley, M 2007, Intellectual property in the new technological age Wolters Kluwer, New York. Miller, A & Michael, H 2000, Intellectual property: patents, trademarks, and copyright, West/Wadsworth, New York. Perelman, M 2004, Steal this idea: intellectual property and the corporate confiscation of creativity, Macmillan, New York. Spinello, R 2007, ‘Intellectual property rights’, Library Hi Tech, vol. 25, no. 1, pp. 12–22. Wharton, D 1992, ‘MPAAs rebel with cause fights for copyright coin’, Variety, vol. 348, no. 2, pp. 18. Read More